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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
U S WEST's Petition for Waiver of ) CCBPol 96-25
Operations Support Systems )
Implementation Requirements )
)
MEMORANDUM OPINION AND ORDER
Adopted: October 22, 1997 Released: October 23, 1997
By the Acting Chief, Common Carrier Bureau
I. INTRODUCTION
1. On August 8, 1996, the Federal Communications Commission (Commission) issued
an order in CC Docket No. 96-98 that established regulations to implement section 251 of the
Communications Act of 1934, added by the Telecommunications Act of 1996. Among other
things, the Commission required incumbent local exchange carriers (LECs) to provide to
requesting telecommunications carriers nondiscriminatory access to operations support systems
(OSS) functions. In doing so, the Commission stated that incumbent LECs that did not yet
comply with this requirement, "must do so as expeditiously as possible, but in any event no later
than January 1, 1997." On December 13, 1996, the Commission issued the Second Order on
Reconsideration in CC Docket No. 96-98, which clarified what incumbent LECs were obligated
to do by January 1, 1997, in order to comply with their obligation to provide requesting carriers
access to OSS functions.
2. On December 11, 1996, two days before the Commission issued the Second Order
on Reconsideration, U S WEST Communications (U S WEST) filed a petition for waiver of the
requirement to provide requesting carriers with access to OSS functions by January 1, 1997.
Five parties filed comments opposing U S WEST's petition for waiver. GTE and U S WEST
filed reply comments. In light of the clarification provided by the Commission in the Second
Order on Reconsideration, and for the reasons discussed below, we find that U S WEST has not
demonstrated good cause for a waiver, and we hereby deny U S WEST's petition.
II. BACKGROUND
A. Local Competition Proceeding
3. In the Local Competition Order, the Commission concluded that two provisions of
the 1996 Act impose on incumbent LECs a duty to provide requesting telecommunications
carriers with access to OSS functions. First, the Commission concluded that the systems and
information necessary to perform OSS functions (i.e., pre-ordering, ordering, provisioning,
maintenance and repair, and billing) are included within the statutory definition of a network
element, and therefore, incumbent LECs must provide requesting telecommunications carriers
access to OSS functions pursuant to the incumbents' duty to provide access to unbundled
network elements. Second, the Commission determined that an incumbent LEC's duty to offer
nondiscriminatory access to network elements on just and reasonable terms and to offer services
for resale without unreasonable or discriminatory conditions includes a duty to provide access
to OSS functions equivalent to that an incumbent provides to itself for its own internal purposes
or offers to its customers or other carriers.
4. In the Second Order on Reconsideration, the Commission clarified that, by January
1, 1997, incumbent LECs must have made available to competitors, upon request, information
concerning access to OSS functions sufficient for competitors to undertake modification or
creation of their own systems in order to be able to use the incumbent's offered interface or
method of access. This required information includes, at a minimum, "the interface design
specifications that the incumbent LEC will use to provide access to OSS functions." To the
extent that an incumbent provides electronic access to OSS functions to itself, its customers, or
other carriers, the Commission also required the incumbent, by January 1, 1997, to provide at
least equivalent electronic access to network elements or services for resale that it is obligated
to provide pursuant to an approved interconnection agreement.
B. U S WEST's Petition
5. In its petition, U S WEST seeks a waiver of: 1) its obligation to provide, by January
1, 1997, nondiscriminatory access to the OSS functions supporting "design services"; and, 2)
to the extent necessary, its obligation to provide nondiscriminatory access to the OSS functions
supporting provision of unbundled network elements. U S WEST asserts that it is only
requesting a waiver of the deadline by which it must provide competing carriers with
nondiscriminatory access to its OSS functions, and that it is not seeking a waiver of the
underlying obligation to provide electronic access to OSS functions. U S WEST also asks the
Commission to declare that its implementation schedule is reasonable and that it is acting in good
faith.
6. U S WEST advances four arguments in support of its claim that we should issue the
requested waiver because "the task mandate[d] by the Commission has proven impossible to
accomplish by US WEST in the timeframe mandated by the Commission." First, U S WEST
alleges, that unlike other incumbent LECs, it was not subject to any state commission mandates
to develop access to its OSS. U S WEST argues that, as of the date of the Local Competition
Order, it had not achieved as much progress toward making nondiscriminatory access to its OSS
functions available to competing LECs as other incumbent LECs already subject to such
requirements had achieved. I a related vein, U S WEST argues that it was not prepared to
provide access to all OSS functions, as required by the Local Competition Order. Prior to the
Commission's Local Competition Order, U S WEST asserts, it intended to provide electronic
access only to the Line Information Database (LIDB), Operator Services and Directory
Assistance facilities (OS/DA), some Advanced Intelligent Network facilities (AIN), and some
billing functions. Second, U S WEST claims that it cannot meet the January 1, 1997, date
because some of the same personnel and resources necessary to implement electronic access to
OSS functions are also involved in working on the operations systems changes needed to
implement long term number portability, the resale of U S WEST's telecommunications
products, and the unbundling of its network elements.
7. Third, U S WEST asserts that it would be impossible to complete the process of
implementing access to OSS for requesting carriers by January 1, 1997, both because requesting
carriers continue to modify the requirements of the access they request, and because U S WEST
frequently determines that it cannot meet the requested access in the manner originally
discussed. Finally, U S WEST claims that "the lack of firm product definition with respect
to [unbundled network elements] makes OSS support somewhat impossible, since the OSS fields
cannot be populated with necessary, predicate information."
III. ANALYSIS
A. Legal Standard
8. Commission rules may be waived for good cause shown. The Commission may
exercise its discretion to waive a rule where the particular facts make strict compliance
inconsistent with the public interest. In addition, the United States Court of Appeals for the
District of Columbia Circuit has stated that the Commission may take into account considerations
of hardship, equity, or more effective implementation of overall policy on an individual basis.
Waiver is thus appropriate if special circumstances warrant a deviation from the general rule,
and if such deviation would better serve the public interest than strict adherence to the general
rule.
B. Discussion
9. We find that U S WEST has not shown special circumstances that would justify a
grant of waiver from our rule requiring incumbent LECs to provide requesting carriers with
access to OSS functions by January 1, 1997. Specifically, U S WEST has not submitted
sufficient evidence to demonstrate that it should be treated differently from other incumbent
LECs. U S WEST's contention that none of the parties opposing the waiver petition has
presented evidence that U S WEST, acting in good faith, could have met the January 1, 1997
deadline misses the point. The burden is on U S WEST to show that a waiver is justified.
10. We are not persuaded by U S WEST's assertion that the "task mandated by the
Commission has proven impossible to accomplish by [U S WEST] in the timeframe mandated
by the Commission." The Second Order on Reconsideration clarifies that the Commission
required incumbent LECs, by January 1, 1997, to make known to requesting carriers sufficient
information, including design specifications, regarding access to OSS functions in order for the
requesting carriers to undertake any actions necessary for them to use that access. As noted
above, U S WEST filed its petition before the release of the Second Order on Reconsideration.
To the extent that U S WEST misinterpreted the Commission's rules to require the actual
provision of access to OSS functions by January 1, 1997, the Second Order on Reconsideration
makes clear that such provision is not subject to the January 1, 1997, deadline, but instead is
governed by implementation schedules established through negotiation or arbitration. We find
that U S WEST has failed to demonstrate that it was unable to provide to requesting carriers the
interface design specifications and other information required by the Second Order on
Reconsideration by January 1, 1997.
11. We agree with TRA that, if we were to grant U S WEST's waiver request, we
would be treating U S WEST differently from other similarly situated carriers that have exerted
substantial effort to comply with their obligation to provide the required information regarding
access to OSS functions in a timely manner. We find unpersuasive U S WEST's argument that
its ability to meet the January 1, 1997, deadline was impaired by the fact that, unlike other
incumbents, U S WEST was not under a state commission order to provide access to OSS.
In the first place, U S WEST presents no evidence, other than reference to one ex parte letter
filed by NYNEX in CC Docket No. 96-98, that all other, or even most other incumbent LECs,
were under a state commission mandate to provide access to OSS functions prior to the release
of the Local Competition Order. While it is clear that at least two incumbent LECs were under
state commission orders to provide access to some OSS functions, U S WEST fails to explain
why its circumstances are different from other incumbent LECs that were not under a state
commission mandate to develop electronic interfaces for OSS functions.
12. We are also not persuaded by U S WEST that it could not comply with the
Commission's rules implementing the 1996 Act because its own view of its OSS requirements
was not as broad as that adopted by the Commission. As clarified by the Second Order on
Reconsideration, U S WEST was required to provide information concerning access to OSS
functions to requesting carriers by January 1, 1997. U S WEST has failed to demonstrate that
its views regarding the scope of the underlying OSS functions prevented it from making the
required disclosure of information by January 1, 1997.
13. Nor are we persuaded by U S WEST's argument that it needs a waiver of the
deadline because it was obligated to use its personnel to comply with simultaneous Commission
requirements, such as access to OSS functions, long term number portability and the provision
of unbundled network elements. All incumbent LECs are under such legal requirements, and
there are many incumbent LECs with fewer internal resources than U S WEST that are working
to meet these requirements. In addition, U S WEST has presented no evidence to show that it
could not augment its work force through additional hiring, or by contracting with third parties.
Further, U S WEST presents little evidence as to why it could not obtain existing third-party
software or systems, as U S WEST acknowledges other incumbent LECs have done, to provide
requesting carriers with access to OSS functions.
14. We are also not persuaded by U S WEST's assertion that its obligation to negotiate
with new entrants impedes its efforts to provide access to OSS functions. U S WEST presents
no evidence that the necessity of dealing with multiple requesting carriers prevented it from
providing interface design specifications to these carriers, or from engaging in good faith
negotiations with these carriers to reach reasonable implementation schedules for
nondiscriminatory access to OSS functions. We similarly reject U S WEST's argument that the
lack of product definitions for unbundled network elements made it impossible to provide OSS
support for those items, because U S WEST fails to explain why a lack of product definition
would prevent it from complying with the requirements of the Second Order on Reconsideration.
To the extent that U S WEST needs to make modifications to its OSS to accommodate specific
requests from telecommunications carriers, U S WEST must respond to such requests through
good faith negotiation and must provide access pursuant to an implementation schedule.
15. The Commission held, in the Local Competition Order and in the Second Order on
Reconsideration, that, in order for requesting carriers to obtain the competitive opportunities in
the local market that Congress envisioned, it is critical for them to obtain access to the OSS
functions of incumbent LECs. Incumbent LECs seeking a waiver must demonstrate that
reducing their obligation to provide access to OSS functions, or allowing them to delay provision
of such access best serves the public interest. None of the arguments presented by U S WEST
convinces us that enforcing the OSS requirements would impose an undue hardship on U S
WEST, or that granting a waiver would better serve the public interest than the application of
our general rule.
16. U S WEST also asks the Commission to declare that its implementation schedule is
reasonable and that it is acting in good faith. AT&T and MCI respond that U S WEST is
engaging in unreasonable delay; they ask the Commission to require U S WEST to comply with
its own proposed implementation schedule and to file reports on its progress towards
implementing interfaces for access to OSS functions. We find that issues regarding the
reasonableness of U S WEST's proposed implementation schedule and whether U S WEST is
complying with that schedule are beyond the scope of this proceeding. With respect to the
request of some parties that U S WEST should be required to file periodic progress reports, we
do not find special circumstances that would lead us to treat U S WEST differently from other
incumbent LECs. The issue of whether to require all incumbent LECs to file periodic reports
on their provisioning of access to OSS functions is before the Commission in its reconsideration
of the Local Competition Order.
17. Finally, we note that, in its reply, GTE challenges the Commission's decision to
identify OSS functions as network elements that must be unbundled under the 1996 Act. The
Eighth Circuit rejected an identical challenge by GTE and other petitioners and upheld the
Commission's finding that OSS functions qualified as a network element, and found that the
Commission's "determination that the term 'network element' includes all of the facilities and
equipment that are used in the overall commercial offering of telecommunications is a reasonable
conclusion and entitled to deference."
IV. ORDERING CLAUSES
18. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 251-252 of the
Communications Act, 47 U.S.C. 154(i), and 251-252, and Section 1.3 of the Commission's
rules, 47 C.F.R. 1.3, the petition for waiver filed by U S WEST COMMUNICATIONS IS
DENIED.
COMMON CARRIER BUREAU
A. Richard Metzger, Jr.
Acting Bureau Chief